Today’s 8-1 ruling in Badgerow v. Walters on an arcane issue under the Federal Arbitration Act displays a sharp divide between the textualism of Justice Kagan’s majority opinion and the pragmatism/purposivism of Justice Breyer’s dissent. It’s almost sad that, near the end of his twenty-eight years on the Court, Breyer finds himself so alone on his hallmark approach. (Almost.)
In her majority opinion, Kagan explains that the “distinctive [statutory] language” on which the Court rested a 2009 ruling on Section 4 of the Federal Arbitration Act is missing from the provisions (Sections 9 and 10) at issue in this case. She faults the lower courts and Justice Breyer for concocting a “uniformity principle” that would require that those provisions be read like Section 4: “We have no warrant to redline the FAA, importing Section 4’s consequential language into provisions containing nothing like it.”
As Kagan puts it, “Walters’s more thought-provoking arguments sound not in text but in policy,” as “Walters—now joined by the dissent—preaches the virtues of adopting look-through as a ‘single, easy-to-apply jurisdictional test’ that will produce ‘sensible’ results.” But the “topline answer” to “Walters’s (and the dissent’s) what-makes-best-sense assertions” is the “obvious[]” proposition that “Even the most formidable policy arguments cannot overcome a clear statutory directive.” More:
“It is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction.” Whitmore v. Arkansas, 495 U. S. 149, 161 (1990). However the pros and cons shake out, Congress has made its call. We will not impose uniformity on the statute’s non-uniform jurisdictional rules.
As Kagan notes, the position she adopts is the position of “fidelity to text” that conservative Fifth Circuit judge James Ho took in dissent in the “just-issued Circuit precedent” that the panel below was bound to follow.
Here is how Breyer begins his dissent:
When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation. Otherwise, we risk adopting an interpretation that, even if consistent with text, creates unnecessary complexity and confusion. That, I fear, is what the majority’s interpretation here will do.
Breyer acknowledges that the majority’s reading “may be consistent with the statute’s text,” but he objects that it “creates what I fear will be consequences that are overly complex and impractical.” His own reading, he maintains, is not foreclosed by the statutory text and promotes “simplicity, comprehension, workability, and fairness.” Plus, he argues, it’s reinforced by the FAA’s legislative history. And here is how he ends his dissent:
I suggest that by considering not only the text, but context, structure, history, purpose, and common sense, we would read the statute here in a different way. That way would connect the statute more directly with the area of law, and of human life, that it concerns. And it would allow the statute, and the law, to work better and more simply for those whom it is meant to serve.